Green Paper - Succession and wills {SEC(2005) 270}
Date: 2005-03-01
Institutions: European Commission
Subjects: European judicial area, approximation of laws, area of freedom, security and justice, inheritance, law of succession, mutual recognition principle, private international law

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 01.03.2005 
COM(2005) 65 final 

GREEN PAPER 

Succession and wills 

{SEC(2005) 270} 

(presented by the Commission) 

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1. 

INTRODUCTION 

This Green Paper opens a broad-based consultation process on intestate and testate succession 
where there is an international dimension.  

The Commission calls on all interested persons to send their responses and any other useful 
contributions, no later than 30 September 2005, to the following address: 

European Commission  
Directorate-General Justice, Freedom and Security  
Unit C1 – Civil Justice 
B – 1049 Brussels 
Fax: + 32 (0) 2 299 64 57 
E-mail: jls-coop-jud-civil@cec.eu.int 

Respondents  should  state  whether  they  object  to  their  responses  and  observations  being  put 
out on the Commission’s website. 

TERMS USED 

* * * 

“Deed”:  formal  document  recording  a  legal  fact  or  act,  authenticated  by  a  public  authority 
such as a notary. 

“Endorsement  (apostille)”:  formality  provided  for  by  the  Hague  Convention  of  5  October 
1961 for the recognition of foreign documents. 

“Simultaneous death”: situation where persons who are to inherit from each other (e.g. father 
and son) die in such circumstances that it is impossible to ascertain which of them died first. 

“International jurisdiction”: power of the courts in a particular country to try a case of an 
international nature. 

“Residual jurisdiction”: rules of international jurisdiction not harmonised in the Community. 

“Deceased”: the person whose death occasions the succession. 

“Exequatur”:  formality  required  in  certain  countries  for  recognition  and  enforcement  of  a 
foreign judgment. 

“Forum”: court having jurisdiction to hear a case or actually hearing it. 

“Agreements  as  to  future  successions”:  Agreements  made  before  death  as  to  one  or  more 
future successions. 

“Intestate succession”: succession in the absence of a will. 

“Joint wills”: Wills made by two or more persons in the same document, either for the benefit 
of a third party or for their mutual benefit. 

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The adoption of a European instrument relating to successions was among the priorities of the 
1998 Vienna Action Plan1. The Programme of measures for implementation of the principle 
of  mutual  recognition  of  decisions in civil and commercial matters2 adopted by the Council 
and  the  Commission  at  the  end  of  2000  provides  for  an  instrument  to  be  drafted.  More 
recently, the Hague Programme3 called on the Commission to present a Green Paper covering 
the  whole  range  of  issues  –  applicable  law,  jurisdiction  and  recognition,  administrative 
measures (certificates of inheritance, registration of wills). 

The  growing  mobility  of  people  in  an  area  without  internal  frontiers  and  the  increasing 
frequency  of  unions  between  nationals  of  different  Member  States,  often  entailing  the 
acquisition  of  property  in  the  territory  of  several  Union  countries,  are  a  major  source  of 
complication in succession to estates. 

The  difficulties  facing  those  involved  in  a  transnational  succession  mostly  flow  from  the 
divergence in substantive rules, procedural rules and conflict rules in the Member States.  

Succession  is  excluded  from  Community  rules  of  private  international  law  adopted  so  far. 
There is accordingly a clear need for the adoption of harmonised European rules.  

Most  successions  are  settled  on  a  non-contentious  basis.  Community  legislation  dealing 
exclusively  with  the  designation  of  courts  having  jurisdiction  in  matters  of  succession  and 
with the recognition and enforcement of their judgments would therefore be insufficient.  

To  simplify  matters  for  those  involved  in  a  transnational  succession  and  to  provide  an 
effective  response  to  the  practical  problems  of  individual  citizens,  a  Community  instrument 
will also have to deal with the recognition of both judicial and extra-judicial documents (wills, 
deeds, administrative documents). As full harmonisation of the rules of substantive law in the 
Member  States  is  inconceivable,  action  will  have  to  focus  on  the  conflict  rules.  The 
Commission concludes that there can be no progress on succession in the Community without 
the question of the applicable law being settled as a matter of priority.  

The first question that arises here concerns the scope of the conflict rules, the core aspect of 
any legislative initiative with the potential to range extremely widely: validity of wills, status 
as heir, reserved portion, administration and distribution of the estate, indivisum, etc.  

The question  of the connecting factor will  also demand  special  attention.  As  is  so  often  the 
case  in  private  international  law,  there  will  be  a  great  temptation  to  seek  “the”  connecting 
factor, the one which will solve all the problems on its own. This might be nationality, which 
for a long time enjoyed privileged status, or habitual residence, which has now become more 
fashionable.  

But in relation  to successions,  none  of the criteria is without its drawbacks.  The deceased’s 
last domicile, used as a connecting factor, could have the effect of activating a law with which 
the  succession  is  only  tenuously  related:  for  instance,  if  the  deceased  did  not  have  the 
nationality of the country where he died and if most of his property is in another country. Is it 
therefore  worth  insisting  on  seeking  a  single  connecting  factor?  Would  it  be  preferable  to 
accept a degree of flexibility, even giving the parties’ choice a role to play?  

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OJ C 19, 23.1.1999. 
OJ C 12, 15.1.2001. 
See Presidency conclusions, Brussels European Council, 4 and 5 November 2004. 

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Whatever  connecting  factor  is  selected  in  the  future  Community  instrument  for  determining 
the applicable law, there is always the possibility that in certain situations it may not match 
the  legitimate  expectations  of  those  involved  in  the  succession.  Such  expectations  are  a 
parameter that must be taken into the equation in the context of a single market in which there 
is  full  freedom  of  movement.  A  person  may,  for  instance,  spend  some  time  in  a  country 
without acquiring any property there at all, as ultimately he plans to return to his own country, 
where  his  family  continue  to  reside  and  where  his  property  is.  If  such  a  person  dies  in  the 
country where he resides, there might be good grounds for the succession being governed by 
the  law  of  the  country  of  his  nationality.  But  connection  to  the  law  of  the  country  of  his 
nationality would not be so legitimate if he left his country of origin long ago and resided in a 
Member State where he has all his family and property ties.  

* * * 

While the determination of the applicable law is essential, the question of jurisdiction should 
not  be  underestimated.  In  some  Member  States  the  courts  always  have  to  be  involved;  in 
others, they are involved only in complex or contentious successions. 

To  legislate  on  jurisdiction,  it  is  first  necessary  to  decide  whether  there  should  be  a  single 
connecting factor or a degree of flexibility.  

Moreover, given that in many Member States the majority of successions are settled outside 
the  courts,  sometimes  with  the  support  of  public  bodies  or  certain  legal  professions,  the 
possibility of international rules of jurisdiction regarding these bodies or professions must be 
considered.  

When  considering  all  these  aspects,  a  number  of  specific  questions  will  have  to  be  looked 
into, such as mutual wills, reserved portions and trusts. This last concept is unknown in most 
legal systems, but it is in use in a number of Member States.  

Lastly,  Community  legislation  in  matters  of  succession  must  also  set  out  to  remove 
administrative  and  practical  barriers.  The  establishment  of  a  European  certificate  of 
inheritance should be envisaged. This is mentioned explicitly in the Hague Programme, along 
with registration of wills. 

2. 

CONFLICT OF LAWS 

2.1.  General questions  

The universal nature of the future rules should not be in dispute: confining the application of 
the  harmonised  conflict  rules  to  strictly  “intra-Community”  international  situations  and 
excluding those in which there is a third-country element would make life more difficult for 
individuals and the legal professions.  

The  first  question  that  arises  concerns  the  system  to  which  the  succession  should  be 
connected,  as  the  same  topics  are  not  necessarily  governed  by  the  law  of  succession  in  all 
legal systems. The harmonisation of the conflict rules should come with a definition of what 
is covered by the law of succession.  

Secondly, one or more connecting factors will have to be determined. 

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And  there  is  the  question  whether  the  future  Community  legislation,  looking  beyond  the 
determination  of  heirs  and  their  rights,  should  extend  to  the  manner  in  which  the  estate  is 
actually passed on to the heirs.  

Question 1: What questions should be governed by the law applicable to the succession?  

In  particular,  should  the  conflict  rules  be  confined  to  the  determination  of  heirs  and  their 
rights or also cover the administration and distribution of the estate?  

Question 2: What connecting factor should be used to determine the applicable law? Should 
the same factor apply to the whole range of issues covered by the applicable law  or might 
different criteria apply to different aspects of the succession? 

In  particular,  should  the  Community  conflict  rule  distinguish  between  movable  and 
immovable  property?  Should  there  be  a  role  for  the  law  of  the  country  where  immovable 
property is situated?  

2.2.  Wills and agreements as to future successions 

Regarding  the  validity  of  wills,  the  laws  of  the  Member  States  take  a  wide  range  of 
approaches  both  to  testamentary  capacity,  the  forms  of  wills,  validity  in  substantive  terms, 
joint  wills4,  agreements  as  to  future  successions5  and  revocability.  The  conflict  rules  also 
differ.  

Question 3: What law should be applicable to: 

- general testamentary capacity?  

- validity:  

•  as to the form of the will? 

•  as to the substance of the will? 

•  joint wills? 

•  agreements as to future successions?  

•  the revocation of wills?  

How should the conflict rule be formulated to take account of changes in connecting factors 
between the date of the will and the date of death? 

2.3. 

Simultaneous death 

The order in which two people who are likely to inherit each other’s property die can have an 
impact on their respective heirs’ rights. Where people die in the same incident, some Member 
States  presume  that  they  died  at  the  same  time  whereas  others  presume  that  they  died  in  a 

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Wills made by two people in the same document. 
Agreements relating to one or more successions not yet opened. 

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particular order. If their successions are governed by different laws, it may be impossible to 
administer them.  

Question 4: How should the question of the possible incompatibility of the laws applicable 
to the successions of persons dying in the same incident be settled?  

2.4. 

Choice of law applicable to the succession 

Although most Member States of the European Union do not allow the future deceased or his 
heirs to choose the law applicable to his succession, the question remains worth considering. 
Whatever connecting factor is selected, the possibility remains that in certain situations it will 
fail to match the legitimate expectations of the people involved in a succession. A degree of 
flexibility might therefore be provided. 

Question  5:  Should  the  future  deceased  (in  a  testate  or  intestate  succession)  be  allowed  to 
choose the law applicable to his succession, with or without the agreement of his presumptive 
heirs? Should the heirs enjoy the same possibility after the succession has been opened? 

Question  6:  If  the  possibility  of  choosing  the  law  applicable  to  the  succession  is  allowed, 
should  the  possibilities  be  limited,  and  should  the  procedure  for  making  the  choice  be 
determined? If they have not been defined as connecting factors, should the following criteria 
be accepted: nationality, domicile, habitual residence or other criterion?  

Question  7:  At  what  time  should  these  connecting  factors  be  operative?  Should  they  be 
subject to specific conditions (duration, validity on date of death, etc.)? 

Question 8: Should it be possible to choose the law applicable to joint wills and agreements 
as to future successions? Should such choice be subject to rules and conditions? If so, how? 

Question 9: Should a spouse be allowed to choose the law applicable to his/her matrimonial 
property scheme as the law applicable to his/her succession?  

2.5. 

Reserved portion of estate 

The  legal  systems  of  all  the  Member  States  protect  the  near  relatives  of  a  deceased  person 
who tries to disinherit them. The protection commonly takes the form of a reserved portion of 
the estate but the mechanism is not recognised everywhere in the European Union. 

Question  10:  Should  the  application  of  the  reserved  portion  of  the  estate  be  maintained 
where the law designated by the conflict rule does not recognise the principle or defines its 
scope differently? If so, how? 

2.6. 

Trusts created by a testator  

Where  a  trust  has  an  international  dimension,  the  courts  and  other  relevant  authorities 
exercising jurisdiction over it must be able to determine the laws applicable to it. Apart from 
the  settlor’s  right  to  choose  the  applicable  law,  it  might  be  necessary  to  devise  specific 
conflict rules for the trust.  

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Question 11: Should specific conflict rules be adopted for trusts? If so, what rules?  

2.7. 

Renvoi 

The  unification  of  the  conflict  rules  at  Community  level  will  obviate  the  need  for  renvoi 
where  all  the  connecting  factors  are  situated  in  a  Member  State.  But  the  question  will  arise 
when the conflict rules designate the law of a third country. 

Question 12:  Should  the  future  Community  instrument  allow  renvoi  if  the  harmonised 
conflict rules designate the law of a third country? If so, how and within what limits?  

2.8. 

Preliminary questions  

The  law  applicable  to  the  succession  sometimes  makes  the  administration  of  the  succession 
dependent on a preliminary question – validity of a marriage or partnership, establishment of 
paternity, etc. – that may fall to be determined by another law.  

Question 13:  What  conflict  rule  should  be  adopted  to  determine  the  law  applicable  to 
preliminary questions on which the succession may depend? 

3. 

RULES ON JURISDICTION 

The  Member  States  have  adopted  widely  varying  criteria:  last  domicile  of  the  deceased, 
domicile  of  the  defendant  or  claimant,  situation  of  certain  property,  or  nationality  of  the 
deceased or of one or other of the parties to the litigation. Account should be taken here of a 
wide  variety  of  interests:  those  of  the  heirs  presumptive,  who  sometimes  reside  in  different 
countries, but also the interests of the various States concerned, particularly where property is 
located in their territory. 

3.1. 

Choice of a head of jurisdiction 

One possibility would be to determine a single court that would have jurisdiction, regardless 
of  the  distinction  made  on  the  basis  of  whether  the  property  in  the  estate  is  movable  or 
immovable. But, as in the case of the applicable law, more flexible rules could be adopted and 
there are several ways of going about this.  

Question  14:  Is  it  desirable  to  determine  a  single  forum  in  matters  of  succession?  Is  it 
possible  to  abandon  the  jurisdiction  of  the  forum  situationis  for  immovables?  If  a  general 
single criterion were to be adopted, what should it be? 

Question 15: Might the heirs be allowed to proceed in the courts of a Member State other 
than  the  one  designated  by  a  principal  rule  on  conflict  of  jurisdiction?  If  so,  under  what 
conditions? 

Question  16:  Where  succession  proceedings  are  pending  in  a  Member  State,  should  it  be 
possible  to  apply  to  the  courts  in  another  Member  State  where  the  property  is  located  for 
provisional and precautionary measures?  

Question 17: Should the future Community instrument contain provisions allowing a case to 
be transferred from a court in one Member State to a court in another Member State and, if 
so, under what conditions? 

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The criteria defined in the future instrument might designate a court in a third country. If so, it 
will  not  necessarily  be  desirable  to  unilaterally  waive  the  jurisdiction  of  the  courts  in  the 
Member  States  if  other  connecting  factors,  excluded  in  the  intra-Community  context,  are 
relevant  for  unilaterally  demarcating  the  jurisdiction  of  these  courts  in  relation  to  those  of 
third  countries.  Leaving  it  for  the  national  legislation  of  the  Member  States,  by  way  of 
“residual jurisdiction”, to answer this question would mean that a common solution could not 
be found and other conflicts of jurisdiction could emerge.  

Let us suppose that the Community criterion of jurisdiction was the deceased’s last domicile. 
A  citizen  of  Member  State  A  dies  in  a  third  country  where  he  settled  only  recently.  All  his 
heirs are in Member State A, and most of his property is in Member State B. Community law 
(designating  the  deceased’s  last  domicile)  does  not  designate  any  of  the  Member  States, 
neither A nor B, even though the succession is much more closely connected with these two 
States  than  with  the  third  country  where  the  deceased  had  his  last  domicile.  The  renvoi  to 
national rules to settle this question could generate a new problem. If Member State A applies 
the  nationality  criterion  and  Member  State  B  applies  the  criterion  of  the  situation  of  the 
property: positive conflict of jurisdiction. Conversely: negative conflict of jurisdiction.  

Question 18: What elements would be relevant in determining the jurisdiction of the courts 
of the Member States in a situation such as that outlined above?  

Question 19: Should these special rules of jurisdiction apply also to property situated in the 
territory of a third country claiming exclusive jurisdiction over it?  

3.2. 

Procedures for the transfer of immovable property 

The transfer of immovable property requires entries in different registers. In certain Member 
States entries in these registers are made only on the basis of a judgment given or a document 
issued by a national authority. It could be provided that register entries may be amended on 
the basis of documents issued in another Member State.  

Question 20: Should the jurisdiction of the authorities for the place where the real property 
in  the  succession  is  situated  be  reserved  where  the  authorities  of  another  Member  State 
enjoy the principal jurisdiction: 

- to issue the documents needed for the amendment of the property registers? 

- to carry out administrative acts and transfer property? 

Question  21:  Is  it  possible  to  devise  uniform  Community  documents  to  be  used  in  all  the 
Member  States  where  property  is  situated?  If  so,  what  existing  documents  could  be 
standardised? Could certain formalities currently required for the purpose of international 
successions be abolished or simplified? If so, which ones? 

3.3. 

Jurisdiction of non-judicial authorities 

Given  the  importance  of  the  functions  exercised  by  non-judicial  authorities  –  notaries  or 
officers of all manner of administrative authorities – heirs might be allowed to handle certain 
formalities with authorities near to them if they do not reside at the place designated by the 
principal rule of jurisdiction.  

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Question 22: Should it be provided that the harmonised rule of jurisdiction also applies to 
other authorities likely to be involved with a succession? 

Question  23:  Should  it  be  provided  that  certain  formalities  can  be  performed  before  the 
authorities of a Member State other than the one designated by the principal rule of conflict 
of jurisdiction? Should this possibility be subject to rules and limits?  

3.4. 

Trusts 

Succession  being  excluded  from  the  scope  of  Regulation  (EC)  No  44/2001,  there  are  no 
Community rules of jurisdiction for litigation in relation to trusts created in wills, which are 
not covered by the Regulation.  

Question  24:  What  rules  of  jurisdiction  should  be  contained  in  the  future  Community 
instrument as regards trusts created in wills?  

4. 

RULES OF RECOGNITION AND ENFORCEMENT 

The future Community legislation must simplify matters for heirs by allowing the recognition 
and enforcement of documents needed for the recognition of their rights – court judgments, 
deeds,  wills,  documents  certifying  the  status  as  heir,  powers  conferred  on  persons  acting  as 
executors, etc.  

4.1. 

Recognition and enforcement of judgments 

By laying down harmonised rules on the applicable law and jurisdiction, the future legislation 
will establish a very high degree of mutual trust and obviate the need to maintain intermediate 
measures for the recognition and enforcement of judgments. But if grounds for refusal were 
maintained, they should be the same for all Member States.  

Question  25:  Can  the  exequatur  for  the  recognition  of  judgments  be  abolished?  Or  should 
grounds for refusing to recognise and enforce a judgment by included? If so, what are they?  

Question 26: Could it be provided that a judgment given in one Member State in a succession 
case  should  automatically  be  recognised  and  available  as  the  basis  for  the  amendment  of 
property registers in another Member State without formal proceedings? Should Article 21(3) 
of Regulation (EC) No 2201/2003 be the inspiration? 

4.2. 

Recognition and enforcement of deeds and wills 

In certain Member States, notaries and other authorities prepare deeds to determine the order 
of  succession  and  administer  the  estate.  Provision  must  be  made  for  the  recognition  and 
enforcement of such deeds.  

Consideration  must  also  be  given  to  possible  rules  applicable  to  foreign  wills,  which  often 
cannot have full effect. 

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Question  27:  Can  the  same  rules  on  recognition  and  enforcement  be  applied  to 
succession-related  deeds  as  to  judgments?  Would  it  therefore  be  possible  to  imagine  that 
succession-related deeds issued in one Member State could serve as the basis for amending 
property registers in the other Member States without further formalities? Should Article 46 
of Regulation (EC) No 2201/2003 be the inspiration? 

Question 28:  Should  there  be  special  rules  to  facilitate  the  recognition  and  enforcement  in 
one Member State of wills made in another Member State? 

4.3. 

Executors (including trustees for trusts created in wills) 

The  designation  of  executors  is  either  optional  or  compulsory,  depending  on  the  Member 
State. Their designation and their functions, which vary from one system to another, are not 
always recognised in other Member States. 

Regarding  the  recognition  and  enforcement  of  judgments  concerning  trusts  created  in  wills, 
there will be the question of the effects of recognising the trusts themselves on the amendment 
of property registers. 

Question 29: Could consideration be given to automatic recognition in all Member States of 
the  designation  and  functions  of  executors?  Should  provision  be  made  for  grounds  for 
challenging their designation and functions?  

Question 30: Should a certificate be established to certify the designation of the executor and 
describe  his  powers?  Which  person  or  authority  should  be  responsible  for  issuing  the 
certificate? What should the certificate contain? 

Question 31: Would the recognition of trusts created in wills allow trust property and related 
title documents to be entered in property registers? If not, what provisions would need to be 
adopted? 

Question 32:  Should  provisions  be  adopted  to  preserve  the  application  of  the  reserved 
portion provided for by the law of succession or another law requiring such protection to be 
given, despite the existence of a trust? If yes, what provisions? 

5. 

EVIDENCE OF STATUS AS HEIR: THE EUROPEAN CERTIFICATE OF INHERITANCE 

Evidence  of  status  as  heir  is  given  in  different  ways,  depending  on  the  legal  system.  It  is 
essential for heirs to be able to assert their rights and take possession of the property to which 
they succeed without having to go through further formalities. With harmonised conflict rules, 
it  would  be  possible  to  establish  a  certificate  having  uniform  effects  throughout  the 
Community. This would undeniably constitute value added.  

Several questions will have to be settled as to the conditions for issuing the certificate, what it 
should contain and what its consequences should be. 

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Question 33: What effects should the certificate have? 

Question 34: What information should appear on the certificate? 

Question 35: Which Member State should issue it? Should the Member States remain free to 
decide which authorities are to issue the certificate or should certain criteria be laid down in 
the light of the certificate’s content and functions?  

6. 

REGISTRATION OF WILLS 

The search for wills, in particular wills made abroad, can be an insurmountable obstacle.  

Question 36:  Should  provision  be  made  for  a  scheme  for  registering  wills  in  all  Member 
States? Should a centralised register be considered?  

Question  37:  What  arrangements  should  be  adopted  to  facilitate  access  to  the  national 
components  of  the  system  or  the  centralised  register  for  the  heirs  presumptive  and  the 
relevant authorities (including their own Member State)?  

7. 

LEGALISATION 

Establishing  a  European  law-enforcement  area  implies  the  removal  or  simplification  of 
formalities.  

Question 38: Would there be any difficulties in abolishing formalities for the legalisation or 
endorsement (apostille) of succession-related public documents issued in a Member State? 

8. 

LEGISLATIVE APPROACH 

It  follows  that  producing  a  corpus  of  Community  rules  on  succession  and  wills  is  a 
particularly vast and complex project.  

Question 39: Can a single,  complete  instrument  be produced? If not,  in  what order  should 
work proceed and via what stages? 

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